Convictions : ACS

Boumediene Three Days Out

Deborah N. Pearlstein — Sat, 14 Jun 2008 19:25:00 GMT

First, thanks, Dawn, for those way too kind words about the detainees' panel at the ACS Convention. I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem "anecdotes" were pretty devastating: Our allies refusing to engage in joint training with us in the Pacific for fear of getting stuck with U.S. detention practices, our allies letting detainees go rather than transferring them to U.S. custody for fear they'd be tortured, the officer in Iraq who told him his No. 1 and 2 concerns about troop safety in Iraq were Abu Ghraib and Guantanamo Bay. Hell of a list. Hope he writes a book.

Second, back to Boumediene, Dahlia correctly points out that Scalia has now written into Supreme Court jurisprudence the canards regularly trotted out about classified information leaked during terrorist trials that have compromised intelligence sources and methods. Relying on a minority report by Republican Sens. Kyl, Sessions, Graham, Cornyn, and Coburn and on a single Washington Post article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al-Qaida satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case.

As Human Rights First exposes in its must-read report on the success of terrorism prosecutions in federal court, Claim 1 is demonstrably false, and Claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost two and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn't even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial. Evidently, they just didn't. As with all such discussions of how well-suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can't conclude much one way or another. But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can't possibly deal with terrorism cases.

Which brings me to Ben, Marty, preventive detention, and Capitol Hill. I was heartened to hear Ben say yesterday and in "Convictions" that he thinks legislation this summer in the area would be a disaster - couldn't agree more. I was also somewhat heartened by what I could pick up of convention buzz on the subject, which amounted to this: everyone is afraid that someone will put forward legislation, but no one thinks it's a good idea, and no one thinks the administration has enough allies left on the Hill to do get anything done. My optimism there was tempered somewhat by this morning's NYT piece saying conservatives now see Boumediene as a rallying cry. So stay tuned.

In addition to Marty's fine points, I've got another beef with Ben, as we discussed yesterday. His well-intentioned proposal and others like it let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward—they let the proverbial hard case make bad law. There are two separate policy problems the next administration has to face: (1) How are we going to get the truck out of the ditch at Gitmo, and (2) what kind of detention power/policy should we pursue in the interest of counterterrorism. The policy options on (1) are limited by our own past bad acts—denying basic Geneva protections in the first instance, torturing some of the detainees, etc. The policy options on (2) are better and may actually just give us what we need under existing law. In all events, until we've got a sensible (or any) counterterrorism strategy (rather than letting our tactics lead us around by the nose, as Mora eloquently showed), we're in no position to go designing yet another new detention scheme.

Blogging From ACS Convention re: Boumediene

Dawn Johnsen — Fri, 13 Jun 2008 20:45:00 GMT

Convictions bloggers Ben Wittes and Deborah Pearlstein just concluded an absolutely terrific panel, "Ensuring Access to Justice for Detainees in the 'War on Terror,' " ably moderated by Judge Marsha Berzon at the American Constitution Society's ongoing annual convention. Deborah Pearlstein's analysis of Boumediene, as well as of Munaf and Omar, just a day after issuance, was breathtakingly comprehensive, clear, and insightful. Ben shared highlights from his forthcoming book, summarizing the existing "imperfect data" on what we know about the Guantanamo detainees. They were joined by Joanne Mariner from Human Rights Watch, who laid out where we can go from here and made a persuasive case for using the federal courts rather than creating a system of preventive detention. (Deborah agreed, and Ben clarified—see Marty's post—that legislation should come only after careful deliberation during the next administration.) And American hero Alberto Mora movingly reminded us that, even putting aside the court's repeated determinations of illegality, the Bush administration's detainee policies have failed miserably, by every measure: fostering detainee abuse and even torture by the U.S. and other nations, creating fertile conditions for the recruitment of terrorists, and undermining the United States' reputation and effectiveness around the world. What a panel!

Earlier today, lunch speaker Sen. Patrick Leahy reminded us what's at stake in the next election and brought the room to thunderous applause when he asked why the Supreme Court upheld the Great Writ of Habeas Corpus by only a vote of 5 to 4.

RE: The Salesmanship of Scalia

Dahlia Lithwick — Mon, 12 May 2008 01:11:00 GMT

Deborah. You are reading me exactly right. ACS has done tremendous work on this front, and I am not slagging legal academics here at all. But between John Roberts' whole "umpire" thing and Scalia's little red bat-phone to the Framers, it seems to me progressives are being badly out-sold. At the risk of yet another wretched baseball metaphor, my problem here is with the pitcher, not the pitch.

The Salesmanship of Justice Scalia

Deborah N. Pearlstein — Sat, 10 May 2008 18:39:00 GMT

In case you living constitutionalists missed it, Dahlia just threw down the gauntlet at the end of her latest account of the many charms of Justice Scalia on his book tour.

The problem, for those of us admittedly charmed but decidedly not persuaded by Scalia's [originalism] argument, is that Scalia has decided to make his case at a moment when there's no one with his charisma offering an opposing view. Justice Scalia's absolute certainty about his own constitutional worldview has benefited over the years from near radio silence from the court's liberal wing. The fuzzy echoes of Brennan's "living constitutionalism"—the notion that the Constitution evolves with social norms—have become too easy for him to parody. Without a really compelling legal theory from the court's liberals, and with his new willingness to be open and expansive for the cameras, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his constitutional methods would appear to be the most plausible approach, if not the only one.

I admit, Dahlia, my first reaction was, yeah, Justice Scalia is camera-ready for sure, but it's hardly fair to say there's no one offering an opposing view. There's Justice Breyer's book, as you mention. And the highly dynamic American Constitution Society (ACS) exists in significant part just for the purpose of developing charismatic opposition. Indeed, when I dashed over for a quick peek at the ACS Web site to see whether it had something to be invoked in its defense, I quickly came to the collection of papers by con law glitterati (including, inter alia, our own Jack Balkin) from a relatively recent symposium ACS sponsored on just what "living constitutionalism" is all about. One of my favorite sound bites was from Vanderbilt Professor Rebecca Brown, who put it with her usual eloquence:

The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exercise its right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.

But then I went back and reread your condemnatory paragraph and realized—your complaint isn't so much about substance, it's about salesmanship. No matter how smart Breyer may be, his "imagine a spherical cow"-type of hypothetical colloquialisms are just too rarified to break through the noise. The liberals have plenty of theories, but none has taken an undisputed place at the top. And the occasional Alan Dershowitz-type notwithstanding, profs are just profs. We need a justice or, say, a presidential candidate who can declare one concrete version of living constitutionalism the winner and wrap it up in a stylish new package that serves a progressive constitutional agenda for the new millennium.

Am I reading you right—is it more the who than the what? And then the biggie—is the only remedy in your view a new face on the bench? Or do you think there's just something about sales that liberals haven't learned?

McCain's Intemperate and Unfortunate Assessment of the Third Branch

Doug Kmiec — Tue, 06 May 2008 14:08:00 GMT

John McCain dishonors the federal judiciary raising tired and out-worn complaints about judicial activism that are not borne out by fact. And why isn't Antonin Scalia on his favorite's list? ...(read more)

Greetings

Dawn Johnsen — Mon, 17 Mar 2008 01:38:00 GMT

By way of brief introduction: I am a professor of law, teaching constitutional law at Indiana University-Bloomington School of Law, so will be writing from the Heartland, as they say. I am a New Yorker by birth, but now have a Hoosier husband and two Hoosier sons (who, like Deborah Pearlstein, are Colts fans, but inherited from my family a deep love of the Yankees). I have happily called Bloomington my home for almost 10 years now, and for the previous 10 lived and worked in D.C. (also happily). Currently of note here in Indiana: People are quite excited that their votes in the Democratic presidential primary likely will matter for the first time in memory.

I am new to blogging but grateful to Dahlia Lithwick and Emily Bazelon for prior opportunities to publish for Slate, here and here. Many thanks to Dahlia, Emily, and Phil Carter for the invitation to be part of this project. Anyone who may have interest in my more academic work can check out some articles posted here. Of most current relevance is Faithfully Executing the Laws, a piece from a 2007 UCLA symposium that examines the failure of President Bush and his lawyers to live up to this constitutional command, particularly regarding the use of torture and other extreme interrogation practices.

My scholarship and interests reflect my two principal areas of legal experience before teaching. Most recently, during the Clinton administration, I advised the president and the executive branch on legal matters for five years, including as the acting assistant attorney general heading the Office of Legal Counsel. For the six years before that (1987-1993), I worked to safeguard reproductive rights at a time when they seemed gravely in danger (as they do again today) as legal director of NARAL Pro-Choice America and at the ACLU.

I serve on the board of directors of a wonderfully vital organization, the American Constitution Society for Law and Policy, which seeks to promote progressive legal values through a network of more than a hundred law school chapters and lawyer chapters around the country. ACS sponsors a terrific annual convention, this year June 12 to 14 in Washington, D.C.